Public Bill Committee

[Sir John Butterfill in the Chair]

Further written evidence reported to the House

PB 17 The Wildlife Trusts

The Committee deliberated in private.

On resuming—

John Butterfill: Good morning. We begin this morning by hearing evidence from representatives of Friends of the Earth. Mr. Ellis, we would like to welcome you to this meeting and thank you for coming to give evidence to us. Would you care to introduce your colleagues, please?

Hugh Ellis:   Yes, thank you, and thank you for the opportunity for giving evidence this morning. On my left is Naomi Luhde-Thompson, who is our planning co-ordinator dealing with communities’ involvement in planning and on my right is Phil Michaels, who is head of our legal team.

John Butterfill: Thank you. Is there any short statement that you would like to make before answering questions?

Hugh Ellis:   Yes, there is. I think it is important to stress that Friends of the Earth and other organisations in the green sector are very supportive of the kind of sustainable development that we need to achieve. But the caveat to that is that such development and infrastructure needs to be delivered in a fair way and in a low-carbon economy. I think our real concern is that the Bill does not meet those two challenges. Our worry is that—particularly in relation to carbon—there are insufficient mechanisms to link the Climate Change Bill, for example, to the national policy statements and to the work of the independent planning commission.
Our concerns on public involvement in participation are also very significant. We think the Bill rewrites the important 1947 settlement on planning, which included democratic accountability and public participation as vital parts of the general planning regime. The system that is presented to us raises a number of concerns in relation to the testing of national policy statements, particularly where those statements are site-specific and involve people’s rights to be heard. The lack of democratic accountability in the IPC is a very significant issue, as are the very limited rights for people at inquiries, particularly the removal of an effective right to be heard.
At the end of the day, we are not looking for a system for non-governmental organisations. It is not a system that should work for the Friends of the Earth; it is a system that should work for the wider community. It is in fact non-aligned individuals—ordinary citizens—who will find this new regime most difficult to deal with. Overall, if we are interested in sustainable development, we need a system where people agree with the process, even if they disagree on outcome.
We do not think the Bill has generated a consensus about the process, and as a result of that there is likely to be, based on our judgment and experience, a very significant increase in public protest around major decisions. We think that consensus is there to be had; we hope there will be a dialogue about achieving that consensus, because it is in no one’s interest ultimately to have a system which is illegitimate in the public eye. Nobody will be able to deliver anything, least of all business, without at least the consent of local populations and the wider society.

John Butterfill: Thank you.

Q 227227

Alun Michael: I want to ask you about your approach to making the process constructive, both in relation to the role of the commission and the processes. Friends of the Earth on some occasions has demonstrated a capacity for constructive engagement with big issues. On other occasions, it has been totally obstructive, perhaps through frustration with process, which is why it is so important to look at that. Would you agree that speed and quality of scrutiny are not necessarily the same, or, to put it another way, that long drawn-out scrutiny is not necessarily better or more objective or more capable of engaging the public or interested parties in scrutiny? How would you set about getting that balance between, on the one hand, speed and opportunity for engagement in a time frame that everybody can understand and, on the other hand, improving the quality of scrutiny and evidence-based discussion of particular issues?

Hugh Ellis:   I think we would take the approach, from the experience we have and also the detailed experience from the late ’60s onwards in this country on major infrastructure, of making an important distinction between changing the structures by which we approve major infrastructure, creating new legislation and managerial reform. It is our firm conclusion from the evidence that we were on the way with the reforms of 2005 to making an effective system. That is to say that the role of the Planning Inspectorate, and the role that the 2005 major infrastructure inquiry rules play, would have avoided many of the difficulties thrown up by cases like terminal 5. But one of the difficulties, I think, is that there is not a clear understanding in this whole debate of where delay comes from in the process. For example, the general mythology around planning is that it is the community—or individual obstructive members of the community—that produces delays in the process. Looking at terminal 5, there is no evidence for that. In fact, more generally in planning, the opportunities for public involvement are very prescriptively defined.
So, what we are really saying is, by all means let us set a framework that delivers decisions in a timely way, but that should not punish those people who find it most difficult to represent their case. We see no evidence, for example, that a right to be heard in inquiries is the critical source of delay, and yet what we have done in the Bill is to say that that general right to be heard, as currently prescribed, has been limited to the point where we think that it is meaningless.

Q 228

Alun Michael: If I may say so, I experienced the eight years of objections to the Cardiff Bay barrage, which I think most people would agree was time that was taken and expense that was involved to no good end. My point is that if there is frustration, you end up with everybody simply using every mechanism they can to delay the process. That is not necessarily good for objectors or for the process. What ways would you see of avoiding the frustration of delay at the same time as improving the quality of the process?

Hugh Ellis:   There are parts of the Bill that we do support, which are sensible. The two primary aspects of that are that a unified consent regime would help immensely, and I think that there is consent around that, and also statements of national policy, where those statements—and this is absolutely vital—are not site-specific. That changes everything in relation to our view of national policy statements. A firm statement of national policy is the sort of thing that was absent in terminal 5, for example, and it would certainly have dealt with that delay.
Our point is that there are multiple sources of delay and that in responding to those multiple sources we need, for example, to focus as much on the competence of developers as we do, if you like, on the constitutional issues around citizenship. Our point is that we may regard the debate about particular development as being frustrating from our particular point of view, but it is vital that there is full scrutiny of the process. In particular cases, like Nirex for example, some people may regard the debate around Nirex as frustrating because NGOs brought forward expert witnesses. That proved that that deep-level disposal of nuclear waste option was unsound and the inspector concluded that it was unsound. Our contention would be that it is very difficult to see how that would be brought forward under this regime.
So we are happy to see that managerial reform. By all means, let us timetable inquiries, let us provide support for third parties, let us create national policy frameworks, let us unify consent, but at the same time let us make sure that there is an arena, a robust arena, where people can come along—not NGOs necessarily, but ordinary citizens—and test the evidence. At the moment, the planning inspector has powers to, for example, rule out evidence that is frivolous or repetitious. All those things are there to help to manage the process, and they are largely untested because they were only introduced in 2005. Our case really is that we should test the system before we introduce a system that we do not think is sound.

Q 229

Tom Brake: In your evidence, you have indicated almost that there is a risk of civil unrest if the Bill becomes an Act, because of the lack of public consultation. What do you think will be required as a minimum to stop a new generation of Swampies emerging?

Hugh Ellis:   Overall, it might be very good for Friends of the Earth’s membership for us to be in that position of conflict again, but speaking certainly as a planner it is not good for the process of developing a low-carbon economy or for social progress. But the minimum has to be two fundamental issues: that people have a proper opportunity to test the evidence in the inquiry process and that the decisions of the commission are democratically accountable.
I will just reflect on one example of that. If we move, for example, to take a new runway at Heathrow, where there will be compulsory purchase of a significant number of homes, one can imagine a situation where approval was given by a committee—the IPC, which is not accountable—which affects the community so profoundly in so many complex ways, it is difficult to see how communities will accept that, unless, critically, politicians made that final decision. After all, planning is political, it is not solely technical, and that is one of the things that underlies the Bill that we do not think is a reasoned assessment. Planning has always been, partly, a political process. So, those two things are the most important: democratic accountability and a right to be heard that means something.

Q 230

Tom Brake: For the IPC to be democratically accountable, that means that ultimately every single decision that the IPC takes has to be taken by a Minister?

Hugh Ellis:   Ultimately, given the size and importance of the decisions, yes.

Q 231

Jacqui Lait: Thank you very much for coming in this morning on what was, potentially, going to be a very busy day for you. You talk with approval about the national policy statements. Could you outline for us the method of consultation that you think should be behind the development of these statements?

Hugh Ellis:   The national policy statement, in principle, or the principle of the Government making clear what their policy is in a generalised way, is clearly sound. The difficulty comes in the detail, as with many other aspects of the Bill. For example, the mechanisms you would need to put in place if a national policy statement were going to be site-specific are very different from those you would need if you were to issue a generalised statement. Take nuclear disposal. If a national policy statement identifies a community where deep-level nuclear disposal is going to take place—bearing in mind that a national policy statement is one of the most powerful planning documents we have ever seen in this country in relation to its power over the final decision—then there has to be a right for the individual to be heard, to test the evidence when there has been a site-specific allocation. 
In a more general sense, we need to encourage very much more active participation in these statements—much more active than, for example, around the classic White Paper process. There is a very important distinction. The kinds of policy in NPS has a much more direct effect on the welfare of communities and individuals than almost any other kind of policy making in government. Consequently, there need to be more effective rights to test NPS. Certainly, our position has been that there has to be an examination in public of a national policy statement, and that the process of it being examined solely by a Select Committee is probably not adequate, because of the issues that raises.

Q 232

Jacqui Lait: Do you then envisage a two-layer consultation—a public consultation and then scrutiny within the parliamentary system—and do you include in that the historic right to be heard, which includes cross-examination?

Hugh Ellis:   Were a national policy statement to be site-specific, an effective forum for examination would have to exist, and it would have to represent the right to be heard.

Q 233

Jacqui Lait: I am sorry: do you agree with the right to be heard, in terms of a cross-examination that is adversarial as opposed to—what is the other word?

Bob Neill: Inquisitorial.

Jacqui Lait: Inquisitorial. Thank you.

Hugh Ellis:   We do. The whole issue of cross-examination is vital, and I relate our example of that back to Nirex, and also to vast amounts of opinion in the literature around this. Cross-examination is the only way of testing evidence properly in planning cases, because no expert panel ever conceived can always know all the right questions to be asked. The only way of testing highly technical information is through a cross-examination process, partly because information in planning is not impartial: it is a contested idea. All environmental impact assessments for a development will be written by the developer, and the information in them cannot be taken as an impartial statement of case. It has to be tested effectively, and we cannot see any mechanism other than producing expert witnesses and doing that through cross-examination.

Q 234

Jacqui Lait: Just a quick one, if I may: would you then be looking to invoke article 6 of the Human Rights Act?

Phil Michaels:   Article 6 of the Human Rights Act would plainly be relevant in situations such as Hugh just mentioned, where you are going to have location-specific national policy statements. If those statements are effectively going to be making decisions about people’s homes and communities, you need to make sure there is a way for their rights to be determined in a way that is fair and impartial. Whether that necessarily, in law, gives rise to a right to be heard orally and to cross-examine is to some extent an open question. The reason it is an open question is that it has not been tested this far, because in situations where people’s homes will be compulsorily acquired, they have traditionally always had that right. There has therefore been no need to test the question. What is likely to happen in this sort of situation is that there will be, we think, a large number of legal challenges, both to national policy statements and then to development consents, if people whose properties are directly affected are not given proper rights to be heard. We think that will cause precisely the sort of delay and uncertainty that the Government, quite sensibly, are trying to avoid.

Q 235

Bob Neill: I was just thinking about that last point. Under what circumstances, if any, do you think that a national policy statement should be location-specific?

Hugh Ellis:   This is very difficult because we feel overall that they should not be locationally specific. This is an important principle, not from an ideological position from Friends of the Earth, but for sensible planning. I say that because it is almost impossible to distinguish high-level and detailed issues in a two-stage process. The more locationally specific an NPS is, the more out of date it becomes—the faster it becomes out of date—and the more it is treading on ground that is more properly dealt with at a local level.
Let me take the question from the other point of view. When the IPC meets, it cannot, or should not normally, re-examine the contents of a national policy statement. Nuclear safety, for example, can be determined, in general, partly by technology, but it is also partly dependent on locational circumstances, such as sea-level rise and whether our existing sites are in the right place overall. That can properly be explored only when all the facts are in front of you.
The idea that we can somehow resolve, in a site-specific statement at national level, issues properly dealt with at the local level, does not work. That is not because previous Governments or non-governmental organisations have been perverse in the way that they have dealt with major projects in this country. The outcome of some of our major projects has been difficult and complex because the issues are difficult and complex. There is no magic wand easily to be waved on those issues. Certainly, we could only move to a site-specific statement if the safeguards that Phil has described, in terms of rights to be heard, applied. That would have to be the case.

Q 236

Bob Neill: From your point of view, it is better that they are not?

Hugh Ellis:   I think that it is better that national policy statements remain high-level and criteria-based. That would be fine.

Q 237

Bob Neill: The other part that I wanted to pursue is that although I probably agree with you about the importance of cross-examination, obviously there is a need to limit repetition and irrelevance. Do you have any problem with the idea that perhaps inspectors should be given more power, in the same way that judges have in some areas in the High Court, to identify issues at preliminary hearings, and then be pretty rigorous about those who stray off the point?

Hugh Ellis:   What is puzzling about the proposals is that we think that those measures are there quite strongly in the 2005 rules and in guidance to the Planning Inspectorate, as things stand. It clearly has powers to rule out irrelevant and repetitious information and it rigorously does that, but it is interesting that it is also sensitive to community needs. It is trained to deal with people who are non-expert. The idea that the non-expert is somehow losing catastrophically through public hearing is simply not true. The idea that the IPC will mostly hear through written representations will exclude more people, because they have less access to that kind of professional advice.

Q 238

Louise Ellman: Can you see anything in the Bill that would make it easier to develop renewable energy?

Hugh Ellis:   That depends on scale. Some of the debate we heard on Tuesday did not distinguish between issues of 50 MW and below which are dealt with through the current planning system, which the Bill does not touch. Most general planning determinations for onshore renewable is stuck at the 50 MW and below area.
The Government have just published what I think is a fantastic statement on climate change, which will unblock most of those problems in the normal planning process on renewables. In the 50 MW and above projects, where there is delay, we think that the primary thing that will make the biggest difference is a unified consent regime, which will overcome the problem of offshore approvals versus a substation onshore, which might take a longer period to approve.
As we have said, there is merit in that proposal and it will certainly deliver faster on renewable energy, but even we cannot argue for renewable energy without proper public scrutiny or democratic accountability. It would be totally counter-productive for climate change to suddenly impose upon society without any debate, because you want to avoid the backlash.

Q 239

Louise Ellman: Taking the Bill as it is, with unified planning consent, are you saying that that would help or hinder renewable energy development?

Hugh Ellis:   Unified planning consent is an enabling measure, but we think that issues around public involvement and the absence of particular duties on the commission on climate change are difficulties. In other words, the picture about what the Bill delivers on renewable energy is difficult. For example, one of the most specific measures that we could take would be to place a duty on the IPC to properly implement the provisions of the Climate Change Bill and to consider climate change properly. That is not in the Bill, but it seems to us that it would be a positive way of ensuring that the IPC dealt with climate change properly and, therefore, facilitated renewable energy.

Q 240

Louise Ellman: Are you against the IPC in principle? I know that you made several detailed points about it in your submission. Are you against the whole concept?

Hugh Ellis:   The IPC is the second infrastructure commission that has been legislated for in this country since 1970, and I suppose that we have concerns about how it is formulated. We are opposed in principle to the commission as set out in the Bill, partly because there is no democratic accountability.
From the point of view of a planning professional, I am also very worried that we are setting up a committee of professionals. I am not satisfied that professionals are trusted or always competent to make such decisions. I am very happy for them to advise, but individual professions should not make decisions with profound consequences. We need political representation to such decisions. They are beyond the scope, reach and competence of professionals.

Q 241

Louise Ellman: So you would not have a different view if different individuals were proposed for the commission, or if there were a different procedure for appointing them. Is that the principle?

Hugh Ellis:   There are various principle issues that would make it difficult for us to say that the commission could be viable. I am worried even about the basic social skills of many professionals. The idea of a commission made up of engineers, planners or surveyors fills me, being one myself, with fear and dread. We have said strongly that there is a whole issue around lay representation and sensitivity to community views, which would need to be reflected on any body that was constituted to make such decisions. Again, we do not think that enough progress has been made on that. I am aware that there is lots of lobbying for professions to be represented, but they are not solely the right people to make such decisions.

Q 242

David Curry: What if the Government were to say to you, “Give us three nominations for this commission”—although I know that they will not change their mind; we know that they never change their mind? I am rather supportive of your view on the commission, but they will not abandon it.
However, if the Government said, “Okay, you are very concerned about this, and you think that those people were not very well brought up and do not know how to eat their peas or talk to people. Give us the names of three people you would nominate who would reassure you that your concerns about public involvement and engagement, and sustainability, would be met. You would feel much happier if which three people were on the commission?” You do not have to clear their names. Just give me three off the top of your head who would make you think, “Gosh, somebody has been listening”—not including Zac Goldsmith.

Hugh Ellis:   There are two quick answers. I am aware that our executive director, Tony Juniper, will leave us in the middle of next year, so he is one possible suggestion. More seriously, the Sustainable Development Commission is a body that we might look to for a balanced view about sustainable development.
I personally cannot offer you three specific suggestions, but this is certainly the important test. When it is time to approve deep nuclear disposal, the community involved will examine in immense detail the credentials and background of every single member of the commission that makes that decision—their lives will be very difficult because of it. I have to say that I cannot at the moment conceive of anyone who could be put in that position and command legitimacy with the public, because the role that they would be given is almost impossible.

Q 243

David Curry: But the Government talk about people who have a range of expertise. One often finds in life people who may not start with a particular expertise but who just happen to have a lot of experience of life and who make good, solid, sensible judgments about things. They act as important elements in an organisation. The nominations obviously would include some people with technical background, but would you feel reassured if the bulk were people who were just sensible citizens who could take a proper balanced view, accept a brief and understand the argument?

Hugh Ellis:   I would be more reassured by that than if they were drawn solely from professional bodies, yes.

Q 244

David Curry: Now, coming to this wonderful business of “locationally specific”—I must remember to tell my wife when she picks me up tonight to be locationally specific about the pick-up point. If we have a national planning statement on an airport runway, that is locationally specific by definition, is it not? Could you have a national planning statement on a runway that did not mention either Heathrow, Stansted, or possibly both, and nowhere else? That is the planning permission to all intents and purposes, is it not?

Hugh Ellis:   That is the problem. Never before in the UK have we set up such a powerful statement in the planning regime as the national policy statement. We understand how regional and local plans interact and how planning policy statements work, but the national policy statement is a super-development plan; it is of extraordinary weight in the decision-making process, when you look at what the Bill asks the commission to do with it. In that sense it will, again, be difficult to command public confidence, which is why the process of adopting a national policy statement has to be so rigorous or the national policy statement has to restrict itself, quite rightly, to general issues. For example, on energy, it might say that the Government have an ambition in respect of a particular sector or technology, all of which is fair and reasonable, but the moment they prescribe a place, you have crossed a line that makes it difficult to retain public legitimacy.

Q 245

David Curry: If we are coming to nuclear energy, I do not know whether this afternoon’s statement will be designated a national policy statement in due course, but it is inconceivable that anybody would build a power station where there is not already a nuclear power station, is it not? Those are site-specific, to all intents and purposes. Is not there an argument for the Minister just saying, “This is an issue of national policy.” All this stuff about the commission having a great range of discretion is absolute hooey! Why do not Ministers get on with it, take responsibility and take the flak?

Hugh Ellis:   At the moment, of course, Ministers would ultimately make that decision: through whichever approval regime, it would have ministerial accountability. That is better than a decision being made by a democratically unaccountable commission. However, we have something important to balance here. Are we serious about public engagement and participation? We are not asking for a veto for communities; we are asking for meaningful participation in decision making. That means that communities have to have an input into national policy statements and there has to be a meaningful arena at the local level to discuss issues.
I return to an important principle of planning, which is that you can only understand an application when you understand all its detailed impacts. A decision-maker must weigh in their hands the local specific impacts against general public interest imperatives. That can only be done through a full public inquiry; it cannot be done in two stages very easily and it certainly cannot be done in two stages and retain public confidence.

David Curry: You are very good—

John Butterfill: Order. Two hon. Members want to get in and we have three minutes left.

Q 246

James Duddridge: Is there legitimate concern that there will be too many national policy statements and that those will not be integrated enough? I am mindful particularly of previous oral evidence that stated that there will be one for each energy sector and of separate evidence about the interaction of ports development and neighbouring road and rail development. It does not strike me as being particularly integrated at the moment.

Hugh Ellis:   It is a great concern. The idea of a national policy framework would be more sensible, certainly, because it would allow us to achieve that integration and allow us to implement the UK sustainable development strategy properly and give it spatial expression. There is an overwhelming case in logic for having one national framework so that such issues can be dealt with properly; otherwise, we will have individual policy silos that are not properly connected.

Q 247

James Duddridge: What is the maximum number of statements that is possible, without having an overarching framework?

Hugh Ellis:   It is extremely difficult, for example in respect of aviation, to understand the impact of a major new airport facility without understanding rail access on a regional or even national scale. In that sense, it is difficult to see how in principle you could have one or two. We should not be afraid of planning; planning is a good thing and a national policy framework should resolve all those issues together. It need not be complex. It does need to force through that integration.

Q 248

David Jones: You are most critical in your memorandum about the powers conferred on the IPC to amend, repeal or revoke local Acts and to apply, modify or exclude provisions in primary legislation. One can well see that such powers are highly desirable if you are going for a super-streamlined consent system. Are you saying that you are opposed to such powers as a matter of principle or that, if such powers are to be conferred on the IPC, they should be subject to some form of democratic scrutiny and accountability?

Hugh Ellis:   We are stressing accountability. We had assumed that the greater the constitutional power of a body, the greater the safeguards would be on the way in which it operates. So democratic accountability becomes even more important.
Do you want to add anything to that, Phil?

Phil Michaels:   That is entirely our position. It is essential that, where a body is able, effectively, to amend primary legislation, it must be subject afterwards to an elected official, either through Parliament or the Secretary of State.

David Jones: If the IPC were to exercise such functions and to have such powers, you would expect them to be subject to the endorsement of the appropriate institution.

Phil Michaels:   Yes. Currently we have legislation in the transport sector that allows for these sorts of changes to be made to legislation but, importantly, those changes are made in the context of a decision by the Secretary of State. They are not made in the context of a decision by the Planning Inspectorate, by unelected officials. That is the key issue.

John Butterfill: Time has now beaten us, I am afraid, but I thank you, Mr. Ellis, and your colleagues, for coming to give evidence to us this morning. It has been most helpful and we are very grateful. Thank you very much.
Good morning, Mr. Southgate. We are very grateful for you coming to give evidence to us on behalf of the Environment Agency. Perhaps you would introduce your colleague.

Mark Southgate:   Thank you. To my left is Tony Grayling, who is head of environmental policy at the Environment Agency.

John Butterfill: Would you like to make a brief opening statement, or go straight to questions?

Tony Grayling:   We welcome the opportunity to talk to you today. I must say that this is my fourth day in the job, so I am going to leave the difficult questions to Mark, but I thought I would highlight some of the issues with the Bill for the Environment Agency. Broadly, we welcome the Bill but, naturally, as the leading public authority for protecting and enhancing the environment in England and Wales, we have particular concerns and we would like to see the Bill strengthened in some areas. Overall, our main concern is that sustainable development principles are followed through and we welcome the fact that that intention was expressed in the White Paper and is to some extent reflected in the Bill. Specifically, we welcome the requirement on the Secretary of State to ensure that national policy statements are consistent with sustainable development, but we think that the same duty should apply to the infrastructure planning commission.
On climate change, we again very much welcome the fact that local development plans will need to address climate change, both in respect of mitigation and adaptation. Again we think that this principle could be applied in other circumstances, specifically to regional spatial strategies and national policy statements.
We have particular concerns in the area of environmental assessments. There are of course some provisions in the Bill for an appraisal of sustainability of national policy statements, but we think that that could be tightened up significantly and that national policy statements should be subject to strategic environmental assessment as part of that sustainability appraisal. Likewise, major infrastructure projects themselves should be subject to environmental impact assessments, according to European law.
We are also concerned that we do not use national policy statements to, in a sense, override international law. We are thinking there, in particular, of the habitats directive. We think that each major infrastructure project should be considered in this respect by the infrastructure planning commission on its own merits. In relation to environmental assessment, naturally we want to see the Environment Agency being a statutory consultee, both on national policy statements and on each major infrastructure project. We are glad that there is provision in the Bill for designating our organisation for that purpose.
Finally, we welcome provisions to establish the community infrastructure levy. Our concern is that some of the money raised through that should be devoted to environmental infrastructure, such as managing flood risk, dealing with waste water treatment and water resources in general. Some of that money will need to be allocated at a regional or sub-regional level and we must ensure that there is proper provision for that on a strategic level. We can see a good advisory role for the Environment Agency in that respect. Those are some of our key concerns.

Q 249

Elfyn Llwyd: You mentioned the need for sustainable development to be reflected adequately in the Bill and that, to some extent, it is already reflected. In what way do you think the Bill could be improved in that regard?

Mark Southgate:   The Bill clearly indicates that the national policy statements will be subject to appraisals of sustainability. Those will be a key lead element for the infrastructure planning commission in taking its decisions. Because the infrastructure planning commission will have flexibility, in certain cases, to consider national policy statements and other factors, we would like it to be very clear that its decisions should be taken in the interests of sustainable development. The infrastructure planning commission should be required to make decisions in relation to sustainable development.

Q 250

Elfyn Llwyd: I will essentially repeat the same question, but with regard to climate change. Do you think that the Bill needs more explicit reference to the need to be mindful of climate change issues at each step?

Mark Southgate:   We are very keen for the Bill to make it clear that there is a need for the adaptation of major infrastructure. One of the lessons of the June and July floods of last year was that significant infrastructure was affected by flooding. A good planning principle is that we should not locate such infrastructure in areas that we know to be at risk of floods, in relation to future climate change. We would like to see Ministers, in signing off the national policy statements, showing that they have taken the adaptation aspects into account in terms of how they will site infrastructure and how they will decide where significant infrastructure is located.

Tony Grayling:   I should like to add to that. Going back to a point that I made, there is an issue about consistency between different parts of the Bill. We welcome the fact that local development plans will have to show how they are addressing the mitigation of climate change and adaptation to climate change, but we think that that could equally apply to regional spatial strategies and national policy statements. In particular, national policy statements should address how they contribute to meeting the objectives set under the Climate Change Bill to stay within emissions budgets and to adapt infrastructure to climate change for resilience purposes.

Q 251

Elfyn Llwyd: Are you satisfied, in your role as a statutory consultee on this issue, that you will have a pivotal role in advising and/or giving your views and helping to amend? It seems to me that, in this regard, your body must be a very important consultee. Does the Bill satisfy you that you will be heard sufficiently?

Mark Southgate:   The difficulty with the Bill is that it does not name individual organisations, but that is for very good reason and will be dealt with in secondary legislation. Clearly, there are provisions for bodies such as ours to be included and we confidently expect that we will be. We will not know that until we see the secondary legislation, but bodies such as the Environment Agency, Natural England and other Government bodies will have key roles in providing advice to the infrastructure planning commission and to applicants in their preparation of applications on issues such as flood risk, waste, nuclear waste and water.

Q 252

Tom Brake: Just to follow on from the discussion on sustainability, you said that the national policy statements in the Bill are currently subject to an appraisal of sustainability. You would like them to be subject to a strategic environmental assessment. Can you explain briefly what that means, quantitatively or qualitatively, in terms of the difference of emphasis that we place on the environment and sustainability?

Mark Southgate:   The issue in relation to the Bill is that it uses the words “appraisal of the sustainability”. There are currently two mechanisms that deal with the environment and the wider economic and social environment: the strategic environmental assessment is a requirement of European law for plans and programmes, and the sustainability appraisal of the planning system, currently applied by the Department for Communities and Local Government, looks at economic, social and environmental aspects.
The Bill has used neither of those well-known terms, despite relating to a process of sustainability. If it referred to a sustainability appraisal, we would be confident that that would relate to the current model that includes strategic and environmental assessment, which means, in reaching a decision as the infrastructure planning commission, looking at what are all the likely environmental effects, knowing what those effects are and making a judgment on whether the economic and social circumstances of the infrastructure outweigh those environmental impacts. That does not mean that the environment takes the key role, but that in reaching those decisions you know what the environmental effects will be. If the Bill either specified that an appraisal of sustainability includes a strategic environmental assessment, or used the term “sustainability appraisal”, which is well understood in the planning profession and already applied as a methodology, that would make it very clear that it included a strategic environmental assessment.

Q 253

Tom Brake: Therefore, a simple amendment that moved those two words around so that “appraisal of sustainability” became “sustainability appraisal” would address your concerns about the Bill’s ability to deal effectively with sustainability issues.

Mark Southgate:   If we could have the words “incorporating strategic environmental assessment”, we would be even happier, but I think that “sustainability appraisal” would certainly relate to something that is well understood and practised in the planning system at present.

Q 254

Tom Brake: Following up the point about statutory consultees, can you explain what extra you acquire as a result of being a statutory consultee that would enable you, for instance, to operate more effectively in addressing issues relating to the environment, climate change or flooding?

Mark Southgate:   Clearly, any new governmental body would always welcome new resources. The issue will be to balance that. These infrastructure proposals will be coming forward anyway. This is a different system of dealing with them, so we would need to input in that way so that, where a planning application has come forward in the current system, we will apply our resources to it with regard to the level of concern and environmental impact that it might have. Therefore, we will be addressing our existing resources and the net effect might be that we might not be able to deal with some smaller applications. Nevertheless, our planning efforts as an organisation are directed to the most important applications and plans that come forward, which would be national policy statements and these major proposals.

Q 255

Tom Brake: Do you know how many people you would need to address the national policy statements?

Mark Southgate:   No. Currently we have around 250 people working on planning and dealing with 50,000 planning applications per annum. Clearly, those will be big and, from our experience, will probably require a large team. For example, we have set up specific teams to deal with the Olympics development and some of the major growth areas because we will be involved not only from the planning aspect, but also as a regulator of some of the licences. Therefore, a multi-disciplined team will be required to deal with those big applications.

Q 256

Jacqui Lait: You mentioned that you want to see the equivalent of the strategic environmental assessment and the habitats directive incorporated into the national policy statement. I just wonder if you have any views on the current status of the airport policy, the policy on nuclear power stations, which we understand might potentially come out today, and on the many current applications for wind farms.

Mark Southgate:   Clearly, there are provisions in the Bill whereby existing policy statements can become national policy statements, provided they meet certain criteria. One of those is that they have had an appraisal of sustainability, and another is that they have been through the public consultation aspects. Obviously, that applies not only to nuclear power: there is an existing waste policy statement as well from the Department for Environment, Food and Rural Affairs. The key question will be, “Have those policy statements, as they now stand, been through those two key processes?” I think that I would not be entirely convinced that some of those have gone through the full processes. Indeed, until we see the secondary legislation, we do not actually know what those tests will be and how those processes work, so it is almost impossible at this stage to say, “Yes, this existing statement could become a national policy statement.” When we have seen what those tests of sustainability are and what those public involvement criteria are, we will have a clearer idea, but at the moment I am not convinced that they would be.

Q 257

Jacqui Lait: One of the issues that came out of yesterday’s evidence session is that statutory bodies having difficulty meeting the deadlines currently set down is one of the reasons for delays in the current inquiry system. There are tight deadlines in the Bill for the IPC to meet. Do you currently have difficulty, as the Environment Agency, meeting the statutory deadlines and would you expect to have any difficulty in meeting the deadlines in the Bill?

Mark Southgate:   The planning Act has only recently given us a duty to respond within 21 days to planning applications. It is actually 21 days or a period agreed in writing with the applicant and other interested bodies. That is the crucial element. The Bill says 28 days is a minimum. It has been recognised in the planning system that major projects do not run to simple timetables. You cannot necessarily put an arbitrary limit on it. A planning delivery agreement approach has been trialled by the Planning Inspectorate, the Planning Advisory Service and other major bodies. It sets up a project timetable, where all parties get around and agree to say, “Well, this is a reasonable period within which we will respond and you will get a good response here.” That is one element of it.
It is very welcome that the Bill sets up quite an extensive pre-application procedure for the developer. We would have expected to have discussed many of the issues raised in some detail with the developer. In many ways we would not expect surprises. We may still have concerns about them, but we would have seen the evidence and so on. The two key tests will be just how good that pre-application by developers is, because that may enable us to respond within 28 days or very close to that or, if not, to have a sensible system whereby you could agree with the developer that this is the project timetable, and run it like any major project, saying, “We will be involved here and we will respond by this time.” There would be certain criteria for us to do that. As for how successful we are now, between 80 and 85 per cent. of our responses are within that 21-day or other agreed period for planning applications, which we think is a pretty good proportion of the 50,000 consultations that reach us every year.

Q 258

David Curry: Gentlemen, you made some interesting comments about the possibility of the infrastructure levy being used for flood relief, and the Minister for floods is here. I do not see how that can work under this Bill. The Government have said that the infrastructure levy must go to meet infrastructure needs that arise from the development and must specifically not be used to catch up the backlog of expenditure. You work on the basis of schemes that have a priority score, so there is by definition a backlog of schemes. How do you think the community infrastructure levy could be used for flood relief work, unless you intend to build houses in the flood plain and therefore to levy in order to put walls around them?

Mark Southgate:   We certainly do not advocate that. The Government’s planning policy is pretty clear that you should look at the lowest flood- risk locations first and build in the high flood-risk areas as a very last resort and only when you have exhausted other options. There are issues around things like flood resilience. In the summer floods, much of the flooding in the Yorkshire area was not to do with river or coastal flooding, but drains and capacity being overwhelmed. In designing a lot of the new development coming forward, which will involve sustainable communities and major infrastructure, we need to make sure that they have the drainage capacity to deal with rainfall now and in the future. We are talking about waste water facilities and waste. We have to ensure that the developers, in bringing forward their schemes, put the effort into the infrastructure that they need now, but also take into account the impacts of climate change. Climate change indicates that we will get wetter weather and more intense rainfall.

Q 259

David Curry: Do you understand that it would not be well received in Ripon, for example—which has been flooded twice in seven years and where our score is, I think, 15.5 out of whatever, so we might get around to a flood relief scheme by about the next millennium—if a development were levied in Ripon but that was not used to protect Ripon? You said that you thought some of it might go regionally, so you are envisaging that, are you not?

Mark Southgate:   We are envisaging that in relation to the areas of large growth. We have some large-growth areas such as Thames Gateway and Milton Keynes South Midlands. We also have proposals for new free-standing eco-towns. They could quite easily straddle local authority boundaries and it would be something of a nonsense if there were different rates on either side of those boundaries. You need to think of those in a sub-regional context.

Q 260

David Curry: Would it not be helpful if money from an infrastructure levy could be put alongside, let us say, a levy by the local council and the regional flood relief bodies, which levy by roughly the price of a loaf of bread per year per band D property—the biggest levy is around £3—in order to put together a package for flood relief? Would it not make this a great deal more helpful if moneys so raised by precepting bodies were not caught by council tax capping?

Mark Southgate:   Clearly, we welcome the additional money that the Government have made available for flood relief up to 2010-11. The issue is proper planning. In planning for these new communities and planning for significant infrastructure in relation to the community impact levy in many cases, it is important that we get the planning right for those new communities for large extensions. It is more difficult in existing communities where there will be one or two developments. For example, will the money become available to give them the proper level of protection? We will continue the priority scoring, but we are very keen that when new towns and urban extensions come forward they have all the necessary environmental requirements so that they do not call upon the backlog, and that we can continue to provide that additional public money to existing places that need those defences.

Q 261

James Duddridge: Are you expecting a separate national policy statement on flooding or simply integrating flooding through sustainability in each national policy statement?

Mark Southgate:   I think that we would expect to be integrated within the national policy statements. The Government policy on flood risk is very clear; it is in PPS 25 on planning, development and flood risk, which says that you should look to the lowest flood-risk areas first and to the highest ones only when no suitable alternatives are available. That is a very sound policy, which we would expect to be incorporated within the national policy statements. Clearly, sustainability appraisal needs to look at other climate-change implications for these significant developments and we would expect that to be a natural part of that planning process—written into all of them as opposed to being a separate, free-standing national policy statement.

Q 262

James Duddridge: Do you envisage the national policy statements including slightly more absolutes, so that at a certain level of flood risk it is totally unacceptable to build a power station or housing, for example, as opposed to simply going through the prioritisation?

Mark Southgate:   It is probably true to say that in planning there is nothing that is absolute but there are things that are very strong. Even now, the Government’s revised statement on flood risk relates the risk to the vulnerability of the development. There are certain developments that it says will be very unlikely to take place in the high-risk areas because of their vulnerability. Clearly, some significant infrastructure would fall into that category. We saw the impact that there could have been on the Mythe water works and the Walham sub-station. It is not in the public interest to put that sort of development in locations that could flood, knocking out that infrastructure. It is part of good planning to think not just about the flood risk now but what it will be in the future and to make sure that we get the location right. I would expect that to be something that the IPC and the national policy statements would look at very carefully.

Q 263

James Duddridge: Given that this is not part of a broader framework, are you concerned that it looks only at new developments? It does not consider the existing infrastructure in the sense that it is not looking at power stations, for example, that are currently on flood plains or housing that, historically, has been inappropriately built; there is no holistic view of infrastructure overall. We are looking piecemeal through national policy statements on future developments.

Mark Southgate:   Clearly, the planning system is all about new development, which is what triggers planning. The Pitt review clearly signalled the concerns about infrastructure and certainly the Environment Agency wishes to see major utility companies taking responsibility for appraising the flood-proof check of their existing infrastructure to see which might be vulnerable and to think about what they might do.
For example, when Carlisle flooded it became apparent, as the utilities thought about the post-effects, that there were options: had they lost a sub-station they could have routed electricity in from other areas to prevent it from being lost. There may be existing sub-stations that do not need to be moved, but you would have an alternative should there be a flood event. Perhaps, in hindsight, there are some that are not in the best location and we need to think about how we would move to getting them in more robust circumstances for climate change.

Tony Grayling:   Of course, in relation to that point, there is a separate governmental process towards developing the adaptation policy framework nationally, and beyond that towards 2011 an adaptation policy and programme. We are looking at the provisions in the Climate Change Bill in that respect—for example, in relation to duties on critical infrastructure bodies to do risk assessments in relation to their flood and climate-change vulnerabilities and to develop action plans.

John Butterfill: Order. A mobile phone, which has clearly not been switched off, has been ringing and another one that may be switched off is interfering with the loud speaker and the microphone system. Would hon. Members and others in the room please ensure that their mobile phones are switched off?

Q 264

Bob Neill: Thank you, Sir John. Gentlemen, I have heard your point about the desire to be a statutory consultee. Are there any other areas in which you think that consultation arrangements could be improved in the Bill?

Mark Southgate:   Generally, the consultation arrangements in the Bill are reasonable; the key things about the process, which have been picked up by other speakers in this and previous sittings, are the issues around legitimacy. The infrastructure planning commission needs to be seen to be taking legitimate decisions. People in the planning system now often will not accept the result of a decision, but they do accept that they have had a fair hearing. I think that that is the crucial aspect. So what we seek from the infrastructure planning commission is that independence, and that people see it as being independent, and that it has clear operating rules, which means that it will hear people when that is necessary.
Therefore, at the end of the process, people can see that, although they may not have got the result that they wanted, they have had a very fair hearing and they do not feel that they were excluded from the process. If you reverse that, there is a risk that, if people feel that they are excluded, they will be discontent and we will see some of the problems that we have had in the past. We need to see some more detail about some of the provisions in the Bill, but we are reasonably confident that they will offer a level of scrutiny that is required.

Q 265

Bob Neill: Should we be looking to recognise somewhere in the Bill the obligations under the Aarhus convention on public participation in decision making in environmental matters?

Mark Southgate:   That is a potential matter to consider. Again, I will say that it relates to the operating procedures of the infrastructure planning commission and that those procedures are seen to be open and people have a right to be involved in them. Equally, it also relates to this important and perhaps forgotten element of the proposals, which is that you can have the national policy statement and the infrastructure planning commission but, in between, you have this quite significant pre-application duty on the developer. Good developers will say that getting the public consultation right is crucial in determining whether they obtain a speedy decision or not. Many developers will say that that up-front investment in talking to the community, allaying some of their fears if not all of them, informing them and making them feel that there has been an open process, can deliver the result at the end in terms of the time saving. Certainly, the better developers do that.

Q 266

Clive Betts: Can I turn to a couple of issues that you have raised? In point 5.3 in your evidence, you refer to local member review bodies and some concerns that you have. I must say that the way that you phrase your concerns almost indicates that you feel that planning committees do not currently deal with issues on planning merits and simply take political issues into account. Also, you suggest that there is somehow a complete separation between planning merits and the concerns of the local electorate. However, is it not a little odd to believe that planning committees can, in the first instance, take decisions on very complicated and widespread development proposals but are not able, on a matter of appeal, to determine an issue about an extension to one house?

Mark Southgate:   I think that it is more the issue of the role that they are playing; we do not mean to indicate that the planning committees do not play an incredibly valuable and legitimate role in the process. This issue relates to where the committee itself has decided to delegate the power to an individual planning officer to make a decision. Then, if the officer decides that that decision should be a refusal or there are conditions that the applicant does not like, the decision would be referred to the committee. There are two issues there: one is that the committee is being asked to act more like the planning inspectorate, as a quasi-judicial body, and it would be less able to take into account the political circumstances that it would take into account as a committee; the second is that it is also part of the same body and therefore it may not be seen in the public’s eye as being independent enough to reach a decision. At the moment, a refusal would then go to the planning inspectorate, which is an identifiably different body. This would involve an officer of the council being judged by the members of his council. Now, those of you who know how local government works know that officers of councils are frequently judged by their members, and quite rightly so. However, I think that there is an issue about the public understanding of that process. So our concern is more that the members who are fulfilling that function know that that is a different role, have the clear jurisdiction and understanding that it is a different role, and explain to the public it is a legitimately different role and is, if you like, an independent appeal.

Q 267

Clive Betts: So, to pick up some of your other wording, providing that there was that appropriate training to ensure that members understood that particular role, then, in general principle, you would not have a problem with what is being suggested?

Mark Southgate:   We need to step back and look at the reason that this process has been introduced. The reason is that there are a lot of minor applications going to the planning inspectorate that require the inspectorate to deal with them. The other question is whether those minor applications are taking up a significant amount of the planning inspectorate’s time. So I think the judgment to make is: will the potential disadvantage that this process may not be seen as being independent by the public, raising concerns about a body judging its own officers’ decisions, offset the impact of those small applications being determined by the planning inspectorate? My professional view is that those applications can be dealt with very quickly and can be dealt with by written representations; they probably do not take up a significant amount of time. It may be that we need to think about whether this proposal will raise as many issues as it solves in relation to reducing the amount of appeals going to the inspectorate.

Q 268

Clive Betts: On the community infrastructure levy, in point 6.3 of your evidence you make the point about sub-regional and regional levels and the fact that we may need some funding from the levy to deal with infrastructure on that basis. When the Local Government Association representatives gave evidence yesterday, they were very much of the opinion that, if we are examining sub-regional issues, that should be a matter of local authorities coming together and reaching agreements. Are you happy with that as the appropriate way to approach those issues, or are you suggesting something more top down, in terms of a top-slicing of the CIL to make available funding for regional and sub-regional projects?

Mark Southgate:   I think the concern would be, as I mentioned, the potential example of a growth area or an eco-town straddling two or three local authorities with different rates of community infrastructure levies in their plans. I think what they need to do is come together as local authorities, in their plans, to identify what infrastructure is needed and agree what those rates are. If that happened, it would be fine, because they would have reached a joint decision. I think the problem is, if they could not do that, how would you deal with it? Hopefully they will act as responsible local governments, recognise that this is an issue straddling their boundary and do it. If it were clear that the emphasis is on local authorities coming together, jointly planning for the necessary infrastructure and creating the same rate among different local authorities, that would be satisfactory. Otherwise, you will need some mechanism to recognise that some things are higher than individual local authority level.

Q 269

Chris Mole: You acknowledged, in answer to the first question, that the Bill places a duty on the preparation of national policy statements to contribute to sustainable development. Given that sustainable development seeks to meet the needs of future generations in the context of future environments, how can they not implicitly take into account the impact of climate change, whether through adaptation or mitigation?

Mark Southgate:   We would certainly expect that, but I think it would be very useful to raise the issue of adaptation. The Government are now doing a considerable amount around adaptation, but it has been true that a lot of the planning effort has been concentrated on the emissions and mitigation side. Particularly given the lessons we have just learned from the summer floods, I think it would be useful to have clarified a clear adaptation responsibility in signing off—if you like, in future-proofing those national policy statements against climate change—preferably on the face of the Bill, but certainly in terms of the guidance.

Q 270

Chris Mole: So it would be an enhancement, rather than an essential addition, to the Bill?

Mark Southgate:   I would like to see it there, because it creates that link between the Climate Change Bill, which is progressing now, and the Planning Bill, and shows joined-up government in action. It could be delivered through guidance, but certainly the preference would be to see it on the face of the Bill.

Q 271

Chris Mole: Pursuing that point in terms of the work of the independent planning commission, you said that if those elements are in the national policy statement, you would like that duty—and, indeed, the climate change duty—to be on the IPC as well, because the IPC can take into account factors other than the national policy statement. How do you think such a duty would change the balance of their judgment, given that the NPS is the primary thing they are looking at anyway?

Mark Southgate:   Clearly, the NPS is, and if the NPS has that duty it will give a significant weight to the decision. The Bill does include welcome provisions that the NPS is not the only game in town: there may be other, specific, local circumstances to be taken into account. I think it is just, to a degree, a bit of i-dotting and t-crossing to make sure that the IPC is very well aware that that is a responsibility it has, and I think that including that clause would make that very clear and apparent.

Q 272

Daniel Rogerson: I have two unrelated questions. To come back to the levy, the right hon. Member for Skipton and Ripon asked a question earlier about flood defences. He also referred to waste water treatment. How do you see that working in terms of the responsibility of the privatised utilities to deliver infrastructure projects?

Mark Southgate:   There is a difficulty in relation to that, because the privatised utilities do not necessarily relate well to the planning regime. I think what we need to ensure is that, in planning for urban extensions, sustainable communities and eco-towns, we are looking at things in the round. Really, the community infrastructure levy is but one part of ensuring that all the players are making sure that the right infrastructure is in place. Element one is to make sure that in planning these places, you have all the waste water treatment you require, and you have adequate drainage for now and for future events. The second part is making sure that all the necessary players are lined up to make their contribution. Some of that will be through developers, because they have had an uplift in their land value; some of it will be through public bodies putting in their element of contribution; some will be private utilities putting in theirs. It is partly about good planning, but in relation to the community infrastructure levy, that is obviously the specific part of this Bill, and clearly there will be additional requirements from this development which will place additional burdens on those private utilities, and developers may be expected to pay some part towards that, particularly in an eco-town, which is an entirely new town.

Q 273

Daniel Rogerson: You also mention concerns about local member review bodies. How do you think that your concerns could be addressed?

Mark Southgate:   The issue is, as I have hinted before, in relation to the clarity of roles. First, their role in independently reviewing their officer’s decision is somewhat different to their role as a planning committee member. Secondly, there is an issue of public satisfaction and public understanding of that process in respect of people being able to see that this is a separate and independent review of the officer. My worry is that people will see this as a judge and jury situation, with an officer for the authority being judged by the members of that authority. Those who understand local government and have worked in it will know that such scrutiny can be intense, but the public may not understand that that is so. It is crucial that that is made apparent. This route is, after all, a mechanism to reduce the number of small-scale appeals going to the Planning Inspectorate. That is its overall objective.

John Butterfill: There are no more questions. Thank you very much indeed, Mr. Southgate and Mr. Grayling, for coming before us this morning and answering all our questions so helpfully and fully. We are most grateful to you.
Further consideration adjourned.—[Mr. Watts.]

Adjourned accordingly at twenty-one minutes past Ten o’clock till this day at One o’clock.